Thursday, June 20, 2013

The IRS Non-Scandal Scandal Collapses on Itself

-- Posted by Neil H. Buchanan

[A quick update, before I get to today's post: On June 7, I wrote a post here on Dorf on Law describing my "Inaugural Lecture" at the University of Business and Economics in Vienna. The video of my lecture, as well as the panel discussion afterward, is now available on the university's website. Click here to link to the video. The actual lecture begins at the 7:12 mark, and runs to the 39:08 mark.]

This is my last post for the next month, during which time I will get married and go on my honeymoon. Somehow, Dorf on Law -- and the blogosphere in general -- will survive without me. I really wish that this post could be about something other than the non-scandal scandal involving the IRS, but the story keeps dragging on, and there are actually a few interesting things to say about it, mostly about what is NOT happening. And what is not happening is any movement in the story suggesting that there was anything other than the set of low-level errors that were known from the beginning of this whole farce.

In my new Verdict column today, I make lemonade from lemons, using a snarky email that I received recently from a random right winger as an invitation to revisit and strengthen my argument that the IRS is an amazingly well-run organization, staffed by dedicated public servants. When one considers the combination of budget cuts imposed by Congress, impenetrable tax provisions passed by Congress, and anti-IRS pandering engaged in by Congress, it really is amazing how well the IRS does its job. (Note that, when I say "Congress" in the previous sentence, this means nearly every Republican, along with a shameless minority -- but still a depressingly large number -- of Democrats.)

What has changed, if anything, because of the non-scandal scandal? We now know that there is a limit to how much the IRS can do with too few resources (or respect). The one thing that the frenzy of further investigations has found is that this is an agency that finally reached its limit over the past several years, with too many career public servants quitting in disgust, and with too little money appropriated to recruit and train replacements. I was always somewhat amazed by the IRS's ability to do so much with so little. Even their powers to stretch themselves, it turns out, are finite.

What else has changed? Not much. The most entertaining thing -- if one likes to watch car crashes -- is the feud that has erupted between Republican Rep. Darrell Issa and Democratic Rep. Elijah Cummings. The top men on the House Oversight Committee now truly hate each other, and they do not bother hiding it. Issa, of course, has spent years honing his skills to become, in Andy Borowitz's words, "an odious, self-serving tool who uses congressional hearings to advance [his] own petty political agenda," basically spending all of his time in Congress figuring out ways to make baseless attacks on Democrats.

If the infamous Senator Joseph McCarthy was a "long ball" scandal-monger (holding high-profile hearings to try to prove that there were Communists everywhere), Issa is a "small ball" pest. Issa uses the same tactics of intimidation, innuendo, and selective use of evidence. And there is no reason to believe that he would not dearly love to be the home run hitter that McCarthy briefly was. The problem for Issa is that he is only moderately competent at what he does -- and he is pitted against someone who is not intimidated. Small ball can win games, if played well, but Issa is no Billy Beane.

But the gleeful spreading of baseless innuendos is something to behold. The major newspapers have all called out Issa and other Republican Congressmen for their claims that the IRS's actions were driven by the White House's desire to harm its enemies. (In my Verdict column today, I repeat a point that I have made before: If a political hack wanted to harm his enemies, this strategy is about the least effective one that could be imagined.) Recently, many of those Congressmen have begun to couch their claims not in the way that Issa had been doing -- "I have in my hand evidence that ..." -- but simply saying that there must be evidence out there.

The simple refusal to believe that this is not "the tip of the iceberg," or similarly vague assertions, is spreading beyond Issa and his immediate colleagues. In my Verdict column, I describe an op-ed by Maryland's former one-term governor (who also served one term in Congress), Bob Ehrlich. Ehrlich had shown no signs before now of buying into the craziest conspiratorial nonsense on the right, but his op-ed shows that even former moderates have bought into the McCarthyite tone.

Similarly, TaxProf provided a link to an op-ed by some unknown guy writing for the Detroit News. Under the brilliantly self-indicting headline, "Let's get rid of the IRS," the author tells his readers that "the IRS has been caught red-handed targeting conservative political
groups for special scrutiny in what seems obvious was an attempt to aid
the reelection bid of President Barack Obama." Get it? It "seems obvious," so it must be true.

Even Dick Cheney got into the act last week, not bothering to argue the merits but simply mocking the idea that this would NOT be political. And I am sure that Dick Cheney would find it difficult to believe that the executive branch would not abuse its power. I just had not realized that his entire party was now on board with his particularly cynical fantasies.

To its credit, the mainstream press has done a reasonable job on this story, actually reporting on the lack of evidence backing Issa's claims, and reducing coverage of a story that is obviously being dragged out for political impact. Which is not to say, however, that our esteemed press is hitting on all cylinders. As I described in my Dorf on Law posts last week (here and here), one of the big disappointments -- among many -- in modern journalism is the emergence of fact-checking organizations that quickly became enamored of being "balanced" between claims by Republicans and Democrats. My ire in those two posts was aimed at one such organization, PolitiFact. On the Issa/Cummings battle, the group FactCheck has had their moment of silliness.

Cummings had announced that an IRS employee's testimony to the committee had undermined Issa's claims of a White House plot to harm Republicans. The witness was asked whether he knew of any such plot, and he said that he did not. Cummings said that this showed that Issa lacked evidence to back his claims. FactCheck, however, decided to flip the burden of proof, saying that "the excerpts are not as conclusive as Cummings portrayed them. The IRS manager ... said, 'I am not
aware of that,' when asked directly about a political bias or political
motivations behind the targeting of conservative groups. And he said he
had 'no reason to believe' that the White House was involved in the
decision to target conservatives." FactCheck concludes that Cummings was "overreaching" just as much as Issa has been. As others have noted, Cummings is forced to try to prove a negative. Pointing to evidence that does not support Issa's claims is all that Cummings can do.

Even so, the IRS non-scandal scandal is currently developing in a way that is pleasantly surprising. In my first Dorf on Law post about the matter, I wrote that the circus-like atmosphere "will only get worse." Maybe I was wrong. At this point, there is no sign that the Republicans are giving up on their attempt to conduct trial by innuendo. Happily, it does not seem to be working, at least so far.

I'll be back in a little more than a month. To all Dorf on Law readers, I wish you a pleasant summer.

11 comments:

I too have been pleasantly surprised by just how fast this "scandal" has been deflated by actual facts.

What surprises me more, though, is that Republicans have so far been able to resist impeachment proceedings. Because the entire IRS "scandal" is fictional, the only substance (and I use that term loosely) for news outlets and pundits to report and talk about is the Republican reaction to that fiction. Thus, the only way Republicans can sustain any sort of public attention on something that doesn't actually exist is to fill the vacuum left by the absence of facts or other disturbing revelations with ever-stronger rhetoric. If they continue to escalate their rhetoric, they will eventually have to call for impeachment.

Of course, impeaching the second Democratic president in a row with even less evidence than the first time would be a PR fiasco for Republicans. And I suspect that memories of the disastrous Clinton impeachment have made Republicans--especially Republicans like Boehner who were around in the '90's--uncharacteristically restrained in this case.

However, I can easily picture Rubio and Paul Ryan in the next presidential primaries shifting nervously as they try to explain to their angry base why they didn't impeach Obama for all of the horrible things they said he did.

Thus, the Republicans are in the classic prisoners' dilema. If all important Republicans start calling for impeachment, then Republicans will have to move forward with the proceedings, which would be a humiliating disaster for the entire party. But if only one Republican--let's say, Rubio--calls for impeachment, he will be able to lambast his primary opponents for not following his lead and impeaching the socialist tyrant Obama when they had the chance, giving him a significant advantage among primary voters.

Given the strong incentive for any one perspective Republican presidential candidate to push for impeachment, I think there's a good chance that--despite the obvious foolishness of the choice--Republicans will eventually move to impeach Obama before the primaries start in 2015.

However, if Boehner does somehow keep the most self-destructive members of his party in line and avoids impeachment, it would be a significant victory of the Party's leadership over their members' (and perhaps their own) mob-like impulses. And maybe, just maybe, such a victory would be a sign that the Republican Party is beginning to evolve into a party that can participate in a healthy democracy.